Big Dig Tragedy Expected to Trigger New Wave of Litigation

When the family of the Jamaica Plain, Mass. woman who was killed when part of the ceiling in a Boston Big Dig tunnel fell gets around to filing a wrongful death lawsuit, that suit is expected to trigger legal fights among all the parties that have been involved with the design and construction of the $15 billion public project, according to lawyers familiar with such cases.

“There will be lots of finger-pointing,” notes James Harrington, who adds there will be numerous legal, technical, insurance and other contractual issues to resolve. Harrington is a partner with Robins Kaplan Miller and Ciresi LLP in Boston.

“Whenever there is a tragedy like this, anybody who touches the project is at risk of being sued,” agrees Jim Dorr, a defense lawyer with the Chicago firm, Wildman Harrold.

Among the candidates to be defendants in any suit are the design firm and project manager, Bechtel/Parsons Brinckerhoff; the main contractor, Modern Continental (now part of Jay Cashman); the Central Artery Tunnel Project; the Massachusetts Turnpike Authority, and various subcontractors.

Manufacturers could also be targeted if there emerges any proof they knew of a defect in their product.

The stakes could be high. Massachusetts wrongful death statute permits punitive damages and any award could be “very substantial,” added Dorr.

While state law caps the liability of the public agency, the Turnpike Authority, at $100,000 in damages, there is no such cap shielding private firms.

Federal investigators are also looking into other tunnel construction projects around the country that used the same method to affix panels.

While lawyers agree there will be great pressure to settle out of court, they note that resulting litigation will still take at least three or four years and probably longer if criminal charges are pursued since parties will be restricted in talking.

It is not yet known exactly what went wrong but speculation has centered on the loosening of bolts that were used to secure the heavy ceiling panels to the roof of the tunnel. Questions have been raised about whether the bolts and accompanying metal plates were installed correctly, whether the epoxy used with the bolts was properly mixed and applied, even whether the bolting method, which is common in construction, was appropriate for the type panels used.

Several state and federal investigations of the tunnel are underway. Inspectors have discovered dozens of additional loose bolts with potential faults. The Interstate 90- airport connector tunnel where the accident occurred has been closed indefinitely, as have two adjacent tunnels.

Harrington says the tribulations surrounding the Big Dig raise questions about the wisdom of contracts where the design firm doubles as project manager and whether there were sufficient checks-and-balances in the project. He points out that instead of a technical expert overseeing Bechtel/Parsons Brinckerhoff, there was a political entity, the Turnpike Authority.

“Bechtel Parsons has an excellent reputation but we all make mistakes,” Harrington said. He said such projects should have another layer of expert monitoring, especially given that public safety is at risk.

The accident that cost Milena Del Valle her life happened around 11 p.m., a time when traffic was light.

The Big Dig, the most expensive public construction project in U.S. history, buried one major interstate (I-93) under the some of the oldest parts of city, connected the state’s turnpike (I-90) to the airport and erected the widest cable-stayed bridge in the world — all without shutting down the city. It has been hailed as a monumental engineering achievement. But it has come in for increasing criticism by public officials for significant cost overruns and various construction problems, including water leaks and the alleged use of substandard concrete.

Attorney General Tom Reilly is considering bringing criminal charges related to the Del Valle tragedy. His office has begun issuing subpoenas to firms with anything to do with the use of the ceiling panels, including the Turnpike Authority and project manager Bechtel/Parsons Brinckerhoff.

Reilly has said that project managers knew of problems with the bolting system back in 1999 but may not have heeded the warning.

Bechtel/Parsons Brinckerhoff defended its work. “Supporting concrete ceiling panels by anchoring bolts to the roof with epoxy adhesive is widely and successfully used throughout the construction industry,” the company said in a statement.

Modern Continental, the contractor of the section being investigated, has also defended its work. In a statement, the company said that its work “fully complied with the plans and specifications provided by the Central Artery Tunnel Project. In addition, the work was inspected and approved by the Central Artery Tunnel Project.”

AIG is the lead insurer on the Big Dig under an owner-controlled insurance program for workers’ compensation and general liability purchased by the highway department.

The section of the Big Dig tunnel where the ceiling is being investigated connects the Mass Turnpike (Interstate-90) to the airport. It was one of the last sections of the mega-project to be completed; it opened in 2003.

AG Reilly had been in negotiations to free the design and construction firms from future liability for claims related to what he identified as close to 200 errors in construction in exchange for a lump sum payment of $108 million. However, Reilly suspended those negotiations after learning of the Del Valle tragedy.